UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4438

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY HAYMON, a/k/a Bear,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:19-cr-00214-LO-1)

Submitted: July 30, 2021 Decided: October 1, 2021

Before MOTZ, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul P. Vangellow, PAUL P. VANGELLOW, PC, Falls Church, Virginia, for Appellant. Raj Parekh, Acting United States Attorney, Philip Alito, Assistant United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jerry Haymon, IV, was convicted after a jury trial of conspiracy to distribute and

possess with intent to distribute 1,000 kilograms or more of marijuana in violation of

(a), 846. The district court sentenced Haymon to the mandatory minimum

sentence of 120 months in prison. Haymon appeals, asserting numerous challenges to the

criminal judgment. We affirm.

Viewed in the light most favorable to the Government, United States v. Palomino-

Coronado,

(4th Cir. 2015), the evidence established that, from 2013 to

2017, Haymon, who resided in California, provided multi-kilogram quantities of marijuana

to Nasiru Carew and Rashourn Niles for distribution in Virginia, Maryland, and

Washington, D.C. The participants communicated extensively by text messages. Niles

and Carew contacted Haymon in California to request shipments of marijuana. Haymon

typically shipped packages containing marijuana through the mail to different addresses

provided by Niles and Carew. On other occasions, Haymon would send packages

containing marijuana by United Parcel Services or Federal Express. Niles and Carew paid

for the marijuana shipments by money order, mailing cash, depositing money in various

bank accounts provided by Haymon, or personally delivering money to Haymon.

I. Exclusion of evidence of California law

Haymon first contends that the district court abused its discretion by precluding him

from introducing evidence concerning California law related to medical marijuana. He

asserts that California legalized the use of medical marijuana and that his conduct was

2 lawful under California law and therefore he did not have the requisite criminal intent to

commit the conspiracy offense with which he was charged.

The fact that a state decriminalized possession of marijuana does not provide a

defense to a charged violation of federal drug laws. See United States v. Henry,

(4th Cir. 2012). Rather, “[m]arijuana remains illegal under federal law, even

in those states in which medical marijuana has been legalized.” United States v. Canori,

(2d Cir. 2013) (citations omitted). Thus, we find no abuse of discretion

by the district court in excluding evidence of California law. See United States v. Johnson,

(4th Cir. 2020) (providing standard).

Haymon also contends that the district court misinformed the jury about California’s

marijuana laws. The district court correctly instructed the jury that California state laws

were irrelevant and inapplicable to this case. Thus, any purported error in the district

court’s characterization of California law was harmless. See United States v. Benson,

(4th Cir.) (providing that juries are presumed to follow instructions), cert.

denied,

, and cert. denied,

(2020),

Haymon argues that, because his possession of marijuana was lawful in California,

he lacked the requisite intent to violate federal law and the district court’s refusal to admit

evidence of California law deprived him of the opportunity to present his defense of

mistake of law or fact. We reject this argument. “To prove conspiracy to possess

[controlled substances] with intent to distribute, the Government must establish that: (1) an

agreement to possess [controlled substances] with intent to distribute existed between two

or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant

3 knowingly and voluntarily became a part of this conspiracy.” United States v. Burgos,

(4th Cir. 1996). Contrary to Haymon’s arguments, the Government did not

need to prove that Haymon intended to commit a crime or that he knew that his conduct

was illegal. See United States v. Ali,

(4th Cir. 2013) (holding that the

mens rea of § 841(a) only “requires specific intent to distribute a controlled substance or

to possess with intent to distribute a controlled substance”).

Additionally, Haymon’s contention that his possession of marijuana was lawful

under California law, and therefore he lacked the specific intent to violate

(a), is not a defense to a charge under the Controlled Substances Act. See Ali,

(holding that prosecutor need not prove that a defendant intended to violate the

law in order to obtain a conviction under the Controlled Substances Act); see also United

States v. Morales, 14-10212,

(9th Cir. Feb. 23, 2017) (“neither

medical necessity nor mistake of law constitutes a defense to federal drug charges”) (citing

United States v. Oakland Cannabis Buyers’ Co-op.,

(2001)).

We further conclude that Haymon’s proffered defense of mistake lacked an

evidentiary foundation and therefore the district court appropriately declined to give this

instruction. See United States v. Dornhofer,

(4th Cir. 1988). Rather

than supporting Haymon’s claim of a lack of intent, the record contains overwhelming

evidence that Haymon knew that his conduct was unlawful and that he and his

coconspirators used elaborate measures to avoid detection by law enforcement officials.

II. Sufficiency of the evidence

4 Haymon next contends that the district court erred by denying his motion for

judgment of acquittal in which he argued that the evidence was insufficient to prove that

he possessed marijuana with the intent to distribute and that he intended to conspire with

others to distribute marijuana. He maintains that any marijuana he possessed was for

personal use, that the exclusion of California law deprived him of the ability to argue that

he lawfully possessed the marijuana for personal use, and that he never formed the intent

to join the conspiracy with the specific intent to distribute marijuana.

We review the trial court’s denial of a motion for judgment of acquittal de novo,

United States v. White,

(4th Cir. 2016), and review “challenge[s] to the

sufficiency of the evidence de novo,” Palomino-Coronado,

. Viewing the

evidence in the light most favorable to the Government, we conclude that there was

substantial evidence to support the jury’s verdict.

Carew, Niles, and other members of

the drug distribution organization testified that Haymon obtained marijuana in California

and shipped it to the East Coast, using several different methods of transport. Other

members of the conspiracy would retrieve these packages and would pay Haymon in a

variety of ways in order to avoid detection. Niles and Carew each considered Haymon a

partner in these activities. The coconspirators’ testimony was corroborated by electronic

messages recovered from the participants’ cell phones. These messages referred to

numerous drug deals, elaborate shipping and payment arrangements, and measures taken

to avoid detection by law enforcement. Because there was substantial evidence at trial that

Haymon knowingly and voluntarily conspired with others to distribute marijuana, we

5 conclude that the district court did not err in denying Haymon’s motion for judgment of

acquittal.

We also find that there was sufficient evidence to support the jury’s decision to

attribute 1,000 kilograms or more of marijuana to Haymon. See Palomino-Coronado,

. Niles testified that, from 2014 to 2016, Haymon provided him with

approximately 15 pounds of marijuana per week. The Government estimated that this

amounted to 2,160 pounds—or approximately 980 kilograms—over the course of the

conspiracy. And Carew testified that, between 2013 and 2017, he purchased at least 1,883

pounds—or approximately 854 kilograms—of marijuana from Haymon. This testimony

was supported by numerous text messages and by the corroborating testimony of other

coconspirators. Although Haymon challenges Carew’s and Niles’ credibility, “[t]he jury,

not the reviewing court, weighs the credibility of the evidence and resolves any conflicts

in the evidence presented.” United States v. Murphy,

(4th Cir. 1994).

Accordingly, we conclude that the jury’s verdict was supported by the evidence and that

the district court appropriately entered judgment in accordance with the jury’s verdict.

III. Jury issues

During deliberations, the jury sent an inquiry to the court asking, “Who are the

individuals that were walking in and out of the audience during the trials?” and “Do I have

any reason to be concerned for my safety and overall welfare from being a part of this

jury?” The court advised the jurors that the “persons in attendance during the trial have

been courthouse personnel and law enforcement officers interested in the case,” and that

there was “no known safety risk to [them for] performing [their] duties [as jurors].”

6 Haymon contends that the district court erred by declining to poll the jury as to their

concerns for their safety and whether this affected the verdict.

The Supreme Court has concluded that “any private communication, contact, or

tampering, directly or indirectly, with a juror during a trial about the matter pending before

the jury is . . . deemed presumptively prejudicial.” Remmer v. United States,

(1954)). We find, however, that the allegations here – of unknown persons walking in

and out of the courtroom during the trial – do not rise to the level of a private

communication or contact with a juror that would require further inquiry. See United States

v. Small,

(4th Cir. 2019) (declining to question or excuse two jurors who

complained that they were “watched” as they exited the jury room, concluding “‘watching’

can hardly be described as ‘communication’ or ‘contact,’ both of which imply an active

exchange of information of some sort”), cert. denied,

(2020); see United

States v. Baptiste,

(4th Cir. 2010) (declining to reach the question of

whether stares from a crowd constituted unauthorized contact, reasoning that there was no

evidence that the staring was likely to affect the verdict). Thus, we conclude that the district

court did not abuse its discretion by declining to question the jury about any influence these

persons may have had on their verdict. See United States v. Johnson,

(4th Cir. 1981) (“The trial court must be afforded wide discretion in handling matters

relating to . . . the integrity of the jury.”).

Haymon also speculates that the jury may have been influenced or intimidated as a

result of the prosecutor’s reference during Haymon’s cross-examination to “armed

individuals” picking up marijuana that had been sent to Carew. The trial court sustained

7 Haymon’s objection to this reference and specifically stated, “There’s no evidence of

armed persons picking it up.” We find that, in light of the strength of the evidence of

Haymon’s guilt, this isolated reference, which was immediately corrected by the trial

judge, does not warrant reversal. See United States v. Jones,

, 542 n.2 (4th

Cir. 2006). Additionally, the district court instructed the jury that any proposed testimony

to which an objection was sustained was to be disregarded, and that questions and

objections are not evidence. Because juries are presumed to follow the court’s instructions,

Benson,

, Haymon cannot establish that this isolated reference to “armed

individuals” prejudiced the jury.

IV. Buyer – Seller instruction

Haymon argues that the district court erred in denying his request for a buyer-seller

jury instruction. This court “review[s] for abuse of discretion the district court’s denial of

[a] proposed jury instruction[].” United States v. Sonmez,

(4th Cir.

2015). A buyer-seller instruction informs the jury that the mere purchase and sale of

narcotics standing alone is insufficient to establish a conspiratorial agreement to distribute

narcotics. United States v. Mills,

, 485 n.1 (4th Cir. 1993).

Evidence of a buyer-seller relationship, coupled with evidence of a “substantial

quantity of drugs,” is sufficient to establish a conspiracy. United States v. Yearwood,

(4th Cir. 2008). The district court acts within its discretion if it does not give

the buyer-seller instruction when the evidence reveals that the relationship between the

alleged conspirators goes beyond a mere drug transaction. Mills,

.

Evidence of a continuing buy-sell relationship along with evidence of large quantities of

8 drugs or repeated transactions can offer further support of a conspiratorial agreement.

United States v. Hackley,

(4th Cir. 2011).

In this case, the Government presented evidence of a continuous buy-sell

relationship that involved regular transactions involving large quantities of marijuana over

a period of several years. In addition, numerous text messages established that Haymon

and Carew and Niles had an ongoing relationship. See Hackley,

. Because

the evidence revealed more than a simple drug transaction, the district court did not abuse

its discretion by denying Haymon’s request for a buyer-seller instruction. See Sonmez,

.

We further conclude that the lack of a buyer-seller instruction did not impair

Haymon’s defense to the conspiracy charge. The district court instructed the jury that, in

order to convict Haymon for conspiracy, it must find, beyond a reasonable doubt, that

Haymon “knowingly and deliberately entered into an agreement to distribute [] controlled

substances.” The court also instructed the jury that “[m]erely associating with others and

discussing common goals” and “merely being present at the place where a crime takes

place or is discussed” is insufficient to establish that the person is a member of a

conspiracy. We conclude that the lack of a buyer-seller instruction did not “seriously

impair [Haymon’s] defense,” see United States v. Lewis,

(4th Cir. 1995), and

therefore find that the district court did not err in denying Haymon’s request for a buyer-

seller instruction.

V. Evidentiary issues

9 Haymon next contends that the district court erred by denying his motion to suppress

evidence recovered from his cell phone. He argues that the Fresno Police Department

retained his phone in violation of the terms of the state warrant and turned the phone over

to the federal government in violation of state law. He also argues that the federal

government seized his phone and its contents prior to the issuance of a federal search

warrant.

In reviewing a district court’s ruling on a motion to suppress, we review conclusions

of law de novo and underlying factual findings for clear error. United States v. Cloud,

(4th Cir. 2021). “Because the district court denied [Haymon’s] motion to

suppress, [this Court] construe[s] the evidence in the light most favorable to the

[G]overnment.” United States v. Clarke,

(4th Cir. 2016) (internal

quotation marks omitted).

Notwithstanding any potential errors by the state authorities in retaining Haymon’s

phone or turning it over to the federal authorities, because the investigators searched the

contents of Haymon’s phone pursuant to a facially valid federal search warrant the district

court appropriately determined that the cell phone evidence was admissible under the good

faith exception to the exclusionary rule announced in United States v. Leon,

(1984). Additionally, we find that, in light of the overwhelming evidence

supporting Haymon’s guilt, any error in admitting evidence from Haymon’s phone was

harmless. See Chambers v. Maroney,

(1970) (applying harmless error

analysis to admission of evidence taken in violation of the Fourth Amendment).

10 Haymon also contends that the destruction in 2013 or 2014 of the substance

contained in packages seized by the United States Postal Inspection Services in connection

with its investigation of Carew and which field-tested presumptively positive for

marijuana, violated his rights under Brady v. Maryland,

(1963). Haymon

contends that this substance “may not have been marijuana” and that his right to a fair trial

was violated by admission of evidence as to the identity of the substance.

Because Haymon failed to raise these claims in the district court, our review is for

plain error. See Fed. R. Crim. P. 52(b); United States v. Olano,

(1993). “To establish eligibility for plain-error relief, a defendant must satisfy three

threshold requirements.” Greer v. United States,

(2021). “First,

there must be an error. Second, the error must be plain. Third, the error must affect

substantial rights, which generally means that there must be a reasonable probability that,

but for the error, the outcome of the proceeding would have been different.”

(internal

quotation marks omitted). “If those three requirements are met, an appellate court may

grant relief if it concludes that the error had a serious effect on the fairness, integrity or

public reputation of judicial proceedings.”

(internal quotation marks omitted).

Under Brady, “the suppression by the prosecution of evidence favorable to an

accused . . . violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.”

.

Success on a Brady claim requires “the proponent [to] show that the undisclosed evidence

was (1) favorable to him either because it is exculpatory, or because it is impeaching;

(2) material to the defense, i.e., prejudice must have ensued; and (3) that the prosecution

11 had materials [or information] and failed to disclose them.” United States v. Taylor,

(4th Cir. 2019).

With these standards in mind, we have reviewed the evidence and conclude that, in

light of the overwhelming evidence of Haymon’s involvement in a marijuana conspiracy,

he cannot establish that any plain error resulted from the admission of evidence as to the

identity of a substance that was seized and destroyed prior to the authorities’ investigation

of Haymon. See Olano,

; see United States v. Gomez,

(10th Cir. 1999) (finding no discovery violation where drug evidence was destroyed before

defendant was indicted and therefore the government was not in possession of evidence).

Moreover, Haymon’s speculation as to the accuracy of the field test does not establish a

Brady violation. See United States v. Caro,

(4th Cir. 2010).

VI. Conclusion

We have reviewed the record and have determined that the district court did not err

in any of the ways asserted by Haymon. Accordingly, we affirm the district court’s

judgment. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

12